In a forthcoming article, I argue that the rapid pace of technological change makes it difficult for courts to craft lasting Fourth Amendment rules when technology is in flux. Soon after a court’s rule is announced, the technological facts may change, requiring a new rule or leaving the validity of the old rule uncertain. On Monday, the Second Circuit decided a case that was keenly aware of this problem in the context of supervised release restrictions. In United States v. Balon, the defendant was sentenced to a 5 year prison term for child pornography offenses, to be followed by a period of supervised release. The district court imposed all sorts of restrictions on the defendant’s computer use for the supervised release period following the defendant’s prison term. (Supervised release is basically post-jail probation.) Balon appealed the conditions, arguing that they were “not reasonably related to the offense of conviction and involve a greater deprivation of liberty than reasonably necessary” under the relevant statutory standard.
In an opinion by Judge Winter, the Second Circuit did something very interesting; the panel held that the challenges to the computer-related conditions were not yet ripe because the underlying technological facts may change between now and the time when the defendant is released from prison:
We find that the conditions reasonably relate to his offense, but whether they involve a greater deprivation of liberty than reasonably necessary is a question that is governed by the state of computer technology. Because it is currently impossible to predict the state of computer technology at the commencement of Balon’s supervised release period, we find most of his challenges premature. We therefore leave the technology-dependent conditions with instructions to the district court to reconsider them at Balon’s or the government’s request near the time of Balon’s supervised release term. As to the challenged conditions not directly dependent upon computer technology, we affirm.
This is a pretty smart approach, I think. The courts can’t craft a long-standing rule based on the facts because the technology is changing the facts so quickly; this approach lets the courts create a rule closer to the time of the rule-application.
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